`The Death of Common Sense' Brings Case against the Law

Article excerpt

Los Angeles Daily News

LOS ANGELES _ The law cannot save us from ourselves, Philip K. Howard tells us as he arrives on the scene with his first book, "The Death of Common Sense: How Law Is Suffocating America."

In his impressive debut, the attorney and New York civic leader focuses on the seemingly endless laws and regulations that government churns out at the local and national levels.

This is a thoroughly researched effort on a crucial contemporary topic, written clearly and pointing to logical solutions. It establishes the author as someone with significant things to say about what works and doesn't work in the United States.

During much of its history, America relied upon a tradition of common law, or general statutes based on flexible principles that could be applied with common sense in specific cases.

But an activist government took charge during the New Deal, shifting into high gear as a modern regulatory state in the 1960s, and Howard argues that America has gone overboard since then by adopting highly detailed laws instead of general statutes as in earlier times.

"Look ... at what we've built: a legal colossus unprecedented in the history of civilization, with legal dictates numbering in the millions of words and growing larger every day," he wrote.

"The Federal Register, a daily report of new and proposed regulations, increased from 15,000 pages in the final year of John F. Kennedy's presidency to over 70,000 pages in the last year of George Bush's."

Agencies created by Congress have multiplied these statutory dictates into additional thousands of rules and regulations. The Environmental Protection Agency has more than 10,000 pages of regulations, and OSHA _ the agency created under the Occupational Safety and Health Act _ once had 140 regulations on wooden ladders, he says.

"The result, after several decades of unrestrained growth, is a mammoth legal edifice unparalleled in history," he wrote. "Federal statutes and formal rules now total about 100 million words."

He sees several adverse consequences including the loss of productivity, loss of respect for law and loss of common sense in regulatory enforcement. Lawmakers have tried to cover every scenario, leaving nothing to interpretation by regulators and administrators, which is the meaning of the book's title.

One of Howard's few examples of something that was done well _ and which seems to prove his point _ is California Gov. Pete Wilson's decision in the aftermath of the 1994 Northridge Earthquake to set aside normal bidding and approval procedures, to hasten rebuilding of Los Angeles freeways.

By making state employees responsible for seeing that the work was done properly, California got the job finished in a fraction of the usual time.

In stark contrast, Howard also cites the example of a public official in another state who speeded up a project to refurbish a historic bridge in time for an anniversary celebration. He finished it ahead of schedule and under budget, but his reward was an official reprimand. …

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